Silverstein v. Sisters of Charity of Leavenworth Health Services Corp.

18-1-409, provisions of section specific 8). (1978 Repl. Vol. Lynne SILVERSTEIN, Here, supports Plaintiff-Appellant, the record sentence. 11077, the In Criminal Action No. defend- man, and, in ant stabbed another Criminal SISTERS OF CHARITY OF LEAVEN defendant, 79CR26, while

Action No. HEALTH WORTH SERVICES CORPO hammer, participated armed RATION, Joseph Hospital, and Saint beating Greeley of a man in a downtown Inc., Defendants-Appellees. store. No. 78-135. defendant, although only years sentencing, had age at the time of been Appeals, Colorado Court of prior of two felonies. In October convicted Div. III. pled guilty he in one ease to the class riot,8 and, Dec. 1979. felony engaging case, attempted pled guilty another he Rehearing Denied Feb. 1980. burglary,9 second-degree felony. a class Certiorari Denied June 1980. granted probation The defendant was 1979, petition both offenses. In for revo- probation

cation of was filed because of

charges made in Criminal Action No. petition

79CR26. This for revocation was 26, 1979, February

dismissed on as a result plea guilty

of the defendant’s to second-

degree assault in the cases are here subject of review. information,

All of the foregoing

more, was available to the trial court. violence,

The defendant’s acts of his advantage

failure to take of the rehabilita opportunity

tive offered to him in 1976 granted probation,

when he was and his repeated illegal

continued activities ap

warranted the sentences from which he

peals.

II. argues

The defendant also that he is pre

entitled to be re-sentenced under the

sumptive sentencing provisions of the 1977 People

version of House Bill 1589. In

McKenna, Colo., this contrary

issue was decided defend position. arguments

ant’s now ad persuade

vanced do not us otherwise.

The sentences are affirmed.

HODGES, J., participate. C. does not 18-9-104, 18-2-101, (now 18-4-203 and C.R.S. 1973 in 1978 Sections Repl. 8). (1978 8). Repl. Vol. Vol. Bernstein, Denver, plaintiff- C. for

Bruce appellant.

Holme, Owen, L. Roberts & Richard Webb, Denver, R. for Schrepferman, John defendants-appellees.

RULAND, Judge. appeals judgment from a complaint trial to which dismissed after the court. We affirm in reverse in part. was based defend-

This action employ ants’ refusal to as a respiratory therapist. prior appeal In a be- parties, tween the this court affirmed plaintiff’s court’s dismissal of (1) damages claims: for 24-34- § 1973; 801(l)(b), (2) exemplary for damages under both the state act and 504 of the Federal Rehabilitation ofAct 794; (3) attorney’s for fees. U.S.C. for trial court’s dismissal of her claim a declaratory judgment act under the state was reversed. Silverstein v. Sisters Charity, Colo.App. remand,

Upon plain- trial was held on the (1) damages tiff’s for claims for breach and for violation of contract the federal (2) declaratory judgments refusing any- hire position one with involving direct care was unlawful under both federal and state acts. parties stipulated that the defendants re- funding ceived the which makes the state They applicable. stipulated act also program activity the defendants have a receiving financial assistance within meaning of the federal act. plaintiff’s employment applica- time of the there is a found The trial tion, opinion only federal aid received divergence seizures likelihood of future regarding the form of Medicare defendants was in the possible and the benefits, those funds and that and Medicaid It further found thereto. risks attendant government provided by were the federal there was substantial Thus, as in bills. pay patients’ hospital the reasonable- opinion supporting medical Trageser, prevail could not the policy. employment the defendants’ ness of the federal act. her claims under that the the court concluded Consequently, qualified” “otherwise un- was not Act II. State disability and that her der the federal of the work in- prevented performance the trial court to declare Silverstein asked The court also volved under the state act. exclusionary employment pol- hospital’s the claim, a the breach of contract dismissed prohibiting, statute icy violative of the state appeal. this which is not involved in ruling handicapped persons against discrimination 24-34-801(l)(b), The Federal Act I. employment. in 1973, physi- provides that otherwise argues Silverstein employed, persons shall be cally disabled was not finding erred in that she court is in employment where the under the federal act qualified otherwise funds, on the by public whole or in and, therefore, dismissed her wrongfully as the able-bod- and conditions same terms re damages declaratory and for claims for ied, particular “the unless it is shown that not reach the that act. We need lief under performance of disability prevents the we argument this since conclude merits of here, involved.” that, circumstances the fed work under the permit an action eral statute does not facts, the trial on uncontroverted Based against employer employment this dis hospital found that the defendant court judgment by the crimination. A correct solely hire because elected not to Silverstein will not be disturbed on review trial court It also found history of of re reasoning which led to the because regard hospital’s policy that the Metropolitan Industrial sult is inaccurate. history hiring persons 158 Corp., Western Products Bank Great positions involv- was to exclude them from 198, Klipfel 944 Colo. 405 P.2d that this restric- patient direct care and Neill, 428, (1972). Colo.App. 494 P.2d 115 30 evalua- individualized tion did not involve Trageser In v. Libbie Rehabilitation The court concluded applicant. tion of each Inc., (4th 1978), Center, F.2d 87 Cir. policy was based that this denied, cert. 99 S.Ct. U.S. opinion, medical substantial and held L.Ed.2d 318 the Fourth Circuit by a duty owed that because of federal private action under [the “[a] dis- hospital patients, to its employment discrimination to redress act] prevented the ability, epilepsy, unless a may not be maintained of the work involved. financial objective of federal primary We provide employment.” is to assistance held that ruling, the trial court so inter Trageser court’s persuaded excluding persons hospital’s policy and its pretation of the relevant statutes positions from a Anderson, 155 White v. conclusions. See permissi care was involving patient direct (1964) Colo. This construction the state act. ble under allowing by the trial of the statute has Trageser, supra, there As law which is a is a conclusion such provid in this case that allegation been no court. Sun binding appellate on an primary objective of ing employment is a Inc., Realty, M. R. Mansfield shine v. by defendants. the federal aid received P.2d 847 Rather, at the Colo. the evidence shows deciding is There cases where individualized inquiry Because our limited to exclusionary policy employment application is consideration of an hospital’s whether the as, statute, permissible require cursory analysis, and because would most a admittedly rejected example, apply if blind were to Silverstein sightedness where is discovering hospital position that she had for a immediately upon necessary evaluating obviously without to assure safe- epilepsy, However, not, ty. presented evidence degree disability, we do of her course, why this demonstrates indi- cogently determine whether Silverstein was case Rather, or- qualified necessary statute. two vidualized under the consideration legislative purpose der significant evaluating issues are the trial to effectuate 24-34-801(l)(b), Does the act. court’s conclusion. an employer allow to exclude found, While, as the trial court there positions all having certain testimony to support and, not, particular disability; if does the that hospital’s premise epilepsy is not cura- hospital fact that is a affect employer the ble as such there is-a of and that likelihood application the statute? of the recurring probable for one with a seizures the facts to inquiry depends epilepsy, pertinent

The answer the first of Assembly particular strongly suggest on what this the General intended the particular disability” disability words “the that her would not alleged in stat- affect ute to trial court her care adopted patients. mean. The of that interpretation the General employed has been a Silverstein as Assembly language pro- intended this respiratory approximately technician for vide, employment, as to certain for the ex- eight years hospitals. in different several by clusion of physically persons disabled acquainted Each of her was employers with disability. virtue of the nature of their We Silverstein’s has She consequence conclude that of such a treated and has never thousands construction frustrate the apparent would any been her involved in incident legislative purpose. Mooney Kuiper, See way. her any affected work in (1978). 194 Colo. Representatives hospitals two of the tes enacting legislative job performance

The intent tified that her was excel this provide penalties physicians statute was to ex Finally, lent. two who are treatment, employers perts those exclude handicapped diagnosis, who field employment solely from because of control of who had examined 24-34-802, Silverstein, their disability. summary, at trial. In testified provided exception par history, expert where a based one disability prevents opined ticular present that condition Silverstein’s recognition of the work physical danger any patient is a that ed no under her care. vary that, disabilities one assuming from individual to an The other testified expert other, that, circumstances, under some prescribed that took the medi Silverstein degree disability cation, disqualify having her chances a seizure were ing. See, g., Community 1,000, e. medically Southeastern one in she was quali that College Davis, 442 U.S. at respiratory fied to work as technician a L.Ed.2d language hospital, that he considered her as necessarily requires being statute completely individu controlled insofar as al application each during daytime. consideration of to de occurrence of a seizure Yet, termine prevented' whether that hospital’s policy precludes any con from performing evaluating the work sideration of this information in disability. Consequently, prohib application. Silverstein’s ited sum, as excludes consideration if we were construe the statute group urged by whose members are the General hospital, determined Assem the nature handicap. bly’s of their dis- physically efforts to enable the fully in the social and participate agree majori abled to I with Part I of the ty opinion which the Federal economic life of the state would be lauda- discusses Act ble, approves holding and which and follows the substantially ineffective. but Trageser, I supra. reasoning find however, hospital argues, hospi that expressed by per the Fourth Circuit most generally tals have broad in mat discretion I am aware that the suasive. While refusal and, therefore, giv are ters care Supreme grant Court to certiorari determining hiring poli en wide latitude in necessarily imply agreement with does effect, says, hospitals, by cies. It result, nevertheless, reasoning I view nature, very their from the exempt impression, that refusal in a case of first application 24-34-801(l)(b), dealing subject with sensitive a as aid to so recognize hospitals 1973. While we handicapped, significant matter. It is regard have wide person discretion difficult for me to believe if there policies nel pa because of their duties to doubts, were nagging certiorari would tients, County Newton v. Board of Commis have been denied. sioners, 86 Colo. 282 P. 1068 we majority’s opinion As to Part II of the holding interfering do not view our statute, disagree. I analyzing the state merely requires discretion. It that the handicapped person consider each majority holds that the trial court as an individual in accordance with the frustrated the intent of the General Assem- mandate of the Assembly. General analysis. bly. accept do not hospital

The also contends that the re- prove majority To that point its holds quirements of per- individualized review of prevents per the state statute se exclu history sons with a is burden- face sion. To so rule flies in the only some. The burden imposed upon by hos- facts as the trial court and the found pitals imposed is the burden agree all em- law. Even if I were to basic subject Act, is, exclusion, ployers premise per that the law pro- as to the se vide physi- Relying individualized consideration of holds otherwise. on Condit v. Unit Airlines, Inc., (4th cally applicants they disabled in order that ed 558 F.2d 1176 Cir. 1977), may “participate fully employ that “the social and trial court held policy economic life of the state and ment as to engage need not be individualized employment.” applicant danger remunerative each where the risk or Section 24- 34-801(lXa), by 1973. ohe common to the class virtue of the disqualifying impairment.” existence aof In view of the conclusions that we have (emphasis added) previously The court had reached, we plaintiff’s need not address oth- opinion found that which it the medical er contentions. accepted and found to be based on “sub portion judgment dismissing That of the opinion stantial and the claims for damages for breach of con- . holds that one with a tract, damages declaratory and for re- does, probability constitute a lief under the federal act is That affirmed. may expected.” that risk future seizures be judgment denying of the a declaratory disqualifying impair the appellant’s judgment hospital position with the ment connection 24-34-801(l)(b), violates sought require she did not individualized reversed and remanded with directions to consideration. Airline Pilots Ass’n Interna complaint judgment reinstate the and enter Quesada, (2d tional v. 276 F.2d -892 Cir. plaintiff. for the 1960) upheld regulation forbidding utilizing pilots air carriers from commercial BERMAN, Judge, in part concurs beyond age of 60. also Murnane v. See part: dissents in Airlines, Inc., F.Supp. 135 American (airlines judgment (D.C.D.C.1979) 40-year age would affirm the trial court’s limit entirety. in its entry-level pilots, which allows them

require experience regulates needed to maximize the technician the flow of air and thereof. safety oxygen and medicine content age before forced retirement at age unlawful under discrimination in found, based on the trial court also Employment Act.) evidence, epilep- has been an early tic since childhood. suffered at She At the same majority time that the relies child, daytime least two seizures as a the invalidity per of a se exclusion rule During ap- last one in 1959 or here, jettisons it seemingly premise its own proximately one minute duration of these by “[tjhere acknowledging be seizures, plaintiff “would be in a semicoma- cases where individualized consideration of plaintiff has con- tose state.” Since 1959 employment application require an would so, stantly been under medication. Even as, cursory analysis, example, most if a since that time she has suffered three sei- person blind apply hospital were to for a one in These night zures at last position sightedness where is obviously nec- —the seizures, “psychomotor epi- to as referred essary patient safety.” to assure I do not lepsy,” episodes,” are generally “short-term cursory analysis know what sort of would by fumbling which are characterized necessary person applies if a blind for a hands, forgetfulness inattention. position surgical nurse other than the Because was epilepsy, found mere fact of blindness. to be “physically both a disabled” majority recital of the evi- “handicapped under the state and a dence introduced on of appellant, as behalf individual” act. under the federal legal position, the basis for its clearly re- hospital defendant is an “acute care objects is, veals that what the majority facility,” primary whose orientation is “the fact, And, the findings of the trial court. acutely patients, care of ill or those under- findings, paying lip avoid these while going surgery serious . .” Plaintiff them, service to they have taken a trans- applied position for a at the path verse they to undo what otherwise was refused because of her However, cannot do. the interdiction of As stated Clark, genre Page Colo., cases of the court, “[sjince time, the Plaintiff has (1979), P.2d 792 and Broncucia v. employment respiratory continued her as a McGee, 22, Colo. therapy hospitals technician at other prevents approach. such an Denver area where employed she is I believe Part II majority opinion date.” should following Appendix read as in the A. policy Defendants’ was to refuse to hire anyone posi- APPENDIX A direct, involving tion or “hands-on” Part II However, care. such be could hired types positions. in other showed, The evidence and the trial court found, following pertinent facts: Plain- policy The is based on the belief tiff is a trained respiratory therapy techni- although epilepsy large is controllable to a cian who would administer treatment di- medication, degree by it is not curable. rectly patients prescribed by physi- a court, the words of the trial defendants cian at scheduled times or during unfore- believe that “there is a likelihood of recur- emergencies. seen Her duties in- would ring probable seizures one with a his- clude the utilization various machines to tory and . . . such patient’s assist a breathing, and the attach- portend possible seizure would danger of ment and detachment to and catastrophic any patient dimensions to be- from the machines. of these patients Some by employee attended such an . . . have tracheal tubes inserted in the throat acceptance risk is incompati- of such a [T]he which must be connected to the machine. ble the duty by owed a to its The equipped machines are patients.” with dials and

performance of the work involved. Plain- proper tiff contends that found that there is standard is trial court also handicap “presents whether the a substan- opinion medical divergence probability very future seizures tial or at the least a rea- likelihood of regarding the probability danger substantial thereto. sonable possible risks attendant and [of] (emphasis rea- or harm to others . .” opinion was found to be Defendants’ added) that the found that the em- We do not believe General and the court sonable intended, Assembly under the threat of upon substantial ployment policy is “based 24-34-802, penalties, criminal see opinion.” 1973, to hire a “oth- that in order to refuse handi- concluded that was no act, hospital demonstrate capped person, the federal qualified” erwise probability danger pa- of substantial to its disability prevented performance that her act. tients. of the work involved under state complaint was dismissed.1

Thus noted, that, correctly The trial court general, “hospitals given wide latitude Act The State determining the standards and discretion in A. the criteria of care within an institution and is that contention principal Plaintiff’s practices to be utilized in or improper an applying erred trial court See, g., achieve the same.” e. order to We disa- her claim. rejecting standard Hospital, 53 Haw. v. Castle Memorial Silver gree. denied, 475, 564, cert. 409 U.S. 497 P.2d (1972); 34 L.Ed.2d 24-34-801, C.R.S. The state 40 N.J. Hospital, v. Newcomb Greisman provides: (1963); see also Newton v. 192 A.2d 817 assembly hereby de- “(1) general Commissioners, 86 Colo. County Board of of the state: it is the clares Ann generally see 282 P. 1068 ot., (1971). And the exer A.L.R.3d 645 blind, visually handi- (b) That will not be hospital’s cise of a discretion deaf, deaf, partially capped, the long so as it is a court interfered physically disabled shall the otherwise arbitrary. See Newton not unreasonable service, the service employed in the state Commissioners, County supra. v. Board of state, political subdivisions that, although hos It also be noted must schools, employ- all other and in pubic patients’ safety, pitals are not insurers of part by in whole or ment reasonable care “obligated to use they are terms and con- on the same public funds patients sub diligence safeguarding it unless as the able-bodied ditions Hospital charge.” Lukes mitted to their St. disability pre- shown 25, 240 P.2d 917 Long, v. 125 Colo. Ass’n the work in- vents the Inc., (1952); Baptist Hospital, NLRB v. cf. added) (emphasis . .” volved 2598, 773, 61 L.Ed.2d 251 442 99 U.S. S.Ct. contend that the do not Defendants J., (1979) concurring)(“[T]he pri (Burger, C. is finding plaintiff that erred in is care and every hospital mary mission the statute. disabled” “physically and patients concern for Thus, properly determined the trial court that to interfere with anything which tends disability plaintiff’s whether the issue to be tolerated.”). And, this objective cannot be work in- performance “prevents care in the exercise of obligation includes volved.” v. Rosane Sen employing personnel. See (1944). 363, 149 P.2d 372 ger, 112 Colo. The statute does not state the standard As- which that the General applied persuaded is to be We are determining in any standard failing express whether a to sembly, by disability prevents the 1. The trial court also found that no contract had been entered into. This issue is not in- appeal. volved

898 upon plain

We also find the cases statute, depart did not intend in re Unlaw inapposite. tiff relies In both In general County 163, Practices, rules. Board these See 570 Employment ful 280 Or. 403, Lunney, Co., v. Colo. 104 (1977), Commissioners 46 67 Bingham P.2d 76 Samuel Kristensen, 38 (P-H) (1976), P. 945 Jones v. Colo. only 706 Lab.Arb.Serv. 513, aff’d, App. injury 563 P.2d 959 possibility was the concern 122, (1978). Had the Colo. 575 P.2d 854 persuaded We are not employee. purpose impose been to a different stan reasoning ap in either of them should dard, easily have statute could been a case such as this which involves plied in drafted demonstrate it. third possibility injury to uninvolved e.,

parties, hospital. i. B. authorities,

Plaintiff’s reliance on various C. support position regarding of her considerations, Based all these we Assembly, intent of the is mis- General conclude the trial court inter- properly placed. Even if one that federal assumes preted state preclude act to defendants’ regulations pursuant issued to the federal only if they actions are unreasonable or valid, Community act are see Southeastern arbitrary. We agree also with the trial 397, College Davis, 2361, v. U.S. court’s conclusion that policy, (1979), they 60 L.Ed.2d 980 were not thereon, and refusal to hire based at effect the time was denied em- arbitrary neither unreasonable nor if it is event, and, ployment they do not opinion. the intent Assembly. reveal of our General Rust, 173, Cf. Dolan 195 Colo. 576 P.2d do we agree plaintiff’s Nor contention (1978) (decision of an administrative that the intent of Assembly the General is not agency arbitrary supported by if it is enacting the state act in exhibited competent evidence). by the 1977 amendments to the Colorado 1957, Antidiscrimination Act of 24-34-301 D. seq., (1978 et Supp.). C.R.S. 1973 Cum. See the trial court’s Plaintiff contends Ford, Utilities City Rocky Citizens Co. v. weight of “contrary to the findings 427, (1955). 132 Colo. We find no error. evidence.” Plaintiff does not contend that sufficiency, It is fundamental “[t]he amendments to the antidiscrimination effect, the evi- weight probative apply their terms acts alleged dence, and conclusions to inferences to have been July committed on or after therefrom, will not be distributed be drawn Colo. Sess. Laws ch. 13 at clearly er- reviewing unless so [by a court] 1215, apply in this we case. have no support in the record.” as to find no roneous to, and any possible reason do not consider Commission, 195 Water Ground Peterson effect these amendments on defendant’s We must 579 P.2d Colo. policy. for, view the the record both search reasons, these reject For same we must in, light most favorable evidence plaintiff’s arguments regarding defendants’ Peterson, su- of the trial court. judgment alleged obligation provide her with “rea- pra. sonable arguments accommodation.” These expert wit- solely regulations testimony are based on the of defendants’ federal the trial support 1977 sufficient to amendments to antidis- ness was findings. opinion that a crimination act.2 It was his court’s handicap actually “handicap" disqualifies person from 2. The amendments to the added decisions, significant impermissible handicap job, bases and the has a ” following exception: job. impact 24-34- with the “if there is on the . . Section no Supp.) employer 306(l)(a), (1978 reasonable C.R.S. 1973 accommodation Cum. regard handicap, can make with evidence, of requisite state action. See Rights Denver Welfare person epilepsy presents Organization with a that, given PUC, risk of future seizures and 190 Colo. consequences

possible catastrophic of a sei- Ward v. Anthony Hospital, St. 476 F.2d 671 zure, employing the risk of such a as (10th 1973). Cir. Similarly, plaintiff’s con- respiratory therapist position involv- policy tention that the is invalid because it direct, ing “hands-on” care is incom- creates an irrebuttable presumption, must patible hospital’s obligation with the to its rejected. be patients. finding court’s consideration Defendants’ individual policy upon defendants’ “is based sub- problems other is applicants with relevant opinion” stantial and is considered in deter- only as a factor to be binding on review. policy not defendants’ mining whether or reject We also plaintiff’s contention that epileptics is reasonable. Be- concerning policy is unreasonable because we are bound the trial court’s cause it does not involve “individual considera- policy is finding that defendants’ tion.” There was evidence that opinion, we conclude by competent medical seizures, turn, the risk of future and in neither unreasonable nor policy is patients, present risk of harm to in all Therefore, prop- the trial court arbitrary. Since plaintiff’s disability concluded that erly class, the risk is common individual- of the work in- “prevents ized consideration of members of the class is 24-34- . .” volved necessary. not City Cf. New York Transit 801(l)(b), Beazer, Authority v. U.S. (1979) (refusal 59 L.Ed.2d 587 em- KELLY, Judge, concurs in and dis- users, ploy all methadone without consider- part. sents applicant each individually, upheld). Judge Ru- While I concur E. Act and its the State construction of land’s Plaintiff’s final contention is that defend- case in Part the facts application to .this policy arbitrary ants’ and unlawful be- dissent from respectfully I opinion, II of his cause certain applicants employ- other Rehabili holding regarding § po- ment3 least some of “[a]t [whom] § 29 U.S.C.A. Act of tation tentially as harmful or more harmful forth in set the statutes I have reviewed with histories [those of] Center, Rehabilitation v. Libbie Trageser excluded, epilepsy,” similarly are not but 1978), cert. de (4th Inc., Cir. 590 F.2d 87 are considered on an individual basis. This 2895, 61 L.Ed.2d nied, 99 S.Ct. 442 U.S. contention is without merit. by the persuaded (1979), and am In New York City Authority Transit Circuit. of the Fourth analysis Beazer, supra, Supreme the United States reversed Court the decision the limitation Trageser applies argument. relies in support of this VI, 42 2000d-3 604 of Title U.S.C.A. § Contrary plaintiff’s position, it was held (1974) by private parties when to actions the individualized consideration of the statute on its face is limited to actions those with problems alcohol did not render agencies. departments federal the treatment of methadone users as a class addition, the court’s I am unable divine unconstitutional. distinction between the relief available to contention, is, employees federal and that available to em- Additionally, this effect, private receiving fed- plain- ployees that defendants’ denies institutions law, ap- equal protection Finally, tiff eral assistance. the retroactive fails be- allegation, 120(a) Comprehensive cause there is plication neither an nor abuse, alcoholism, applicants high pres- drug psychiatric Included are blood ríes of sure, disease, trouble, heart back or with histo- difficulties. Amendments, 29 Rehabilitation Services 1979), seems to 794a(aX2) (Supp.

U.S.C.A. § injustice, and result in manifest

me to contrary compels a say cannot that the law MacFarlane, Gen., Atty. J. D. Richard F. conclusion. Gen., Hennessey, Deputy Atty. Douglas A.

Colaric, Counsel, Designated Steamboat Springs, plaintiff-appellee. Walta, Gregory J. Public Colorado State Defender, Schurman, Special William S. Defender, Deputy Public Steamboat Springs, defendant-appellant. Colorado, The PEOPLE of the State of STERNBERG, Judge. Plaintiff-Appellee, appeal The determinative issue on this whether which defendant offense of convicted, HERNANDEZ, “attempted Tina Trout Tina Hernandez was Tina a/k/a homicide,” Kay Trout, negligent legally was Defendant-Appellant. criminally cognizable in We conclude Colorado. No. 76-813. statutes, applicable charge under the Colorado Appeals, logical legal Court of was a and impossibility. Therefore, we reverse Hernandez’

Div. II. convic- tion of that offense. April originally charged Hernandez was As Rehearing Modified On Denial of assault, degree conspiracy first to commit 1,May assault, degree attempted first second

degree Following murder. a preliminary hearing, conspiracy the assault and charges propriety were dismissed. The of dismiss- ing charges these is not before us. The case went attempted to trial on the second degree murder charge.

The evidence at trial disclosed that dur- night an altercation on the of Novem- 1, 1975, ber the victim was beaten and kicked a number of ren- dered testimony unconscious. There was dragged that- Hernandez then the uncon- puddle, leaving scious victim to a mud him there face Shortly down in the water. thereafter the victim was removed from the puddle. eventually He lost the vision in his eye left the beating. the result of jury attempt- court instructed the on Also, ed degree second murder. over de- objection, joined fendant’s the court criminally negligent homicide and the at- statutes, 18-3-105(l)(a) tempt 18- 2-101(1), charged jury “attempted criminally negligent homi- jury cide.” The convicted of that offense.

Case Details

Case Name: Silverstein v. Sisters of Charity of Leavenworth Health Services Corp.

Court Name: Colorado Court of Appeals

Date Published: Dec 20, 1979

Citation: 1979 Colo. App. LEXIS 909

Docket Number: 78-135

Court Abbreviation: Colo. Ct. App.